Trademarks Are About Your Customers
So you know that a Trademark is a name, a slogan, a logo, or design that uniquely identifies a product, a service, or the provider of that product or service. But sometimes, Trademark Law can get kind of confusing. And if you find yourself confused with your own Trademark or a mark that somebody else has, go back to this, and sometimes things make sense.
Here’s the nuance: It’s all about the consumer. It’s not about your business. It’s all about the consumer. So, unlike Patents and Copyrights, where the law is designed to reward an inventor or creator or actually doing their inventing and creating, In Trademark Law, the concept is that a consumer needs to know that they can trust – That the thing that they’re purchasing is the actual thing they intend to purchase. “The Real McCoy” if you will. And this leads to some interesting consequences that sometimes surprise people. So, for example, you can’t actually get your mark registered until it’s actually being used in commerce because there’s no consumer to confuse.
This also leads to the two kinds of trademark applications. One is called an Actual Use Application. So, if your mark is actually in commerce, your application process follows one path. If you just intend to use a mark, you can go ahead and file the application, but you still can’t get your mark to register until you’re actually settling that good or service in commerce.
A second consequence that’s interesting is that (2) There’s no Trademark Squatting. So, unlike Domain Names that people will go and reserve, sometimes with the intent of selling a product or service; but frankly more often, it’s just to hold on to it and see if that Domain Name’s value will go up. You can’t do that with Trademarks. And if you try, you’re going to get knocked off of it and lose. And there’s also some criminal consequences that may be enforced against you should you try. And this is directed toward the one or two phone calls I get every month that actually ask me to register a Trademark so they can squat on it. Anyway, enough of that.
So, the third consequence is that (3) In the event you want to stop someone from settling a mark that offends you because it’s too similar to your own, to win damages in that lawsuit, you’re going to have to demonstrate actual Consumer Confusion or a Likelihood of Confusion. And that leads to a different set of damages. But the Consumer Confusion is the key there. Again, why? It’s all about the consumer. So, remember this nuance in Trademark Law. It will clarify so many things that you might find confusing about your mark or another mark that someone has, and that is that “It’s all about the consumer.”
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